Immigration practitioners are advising U.S. citizen–foreign national couples that maintaining separate residences during the pendency of a marriage-based green card application may materially increase adjudicatory scrutiny. This advisory arises amid a documented trend of enhanced enforcement and closer examination of marriage-based immigrant visa petitions by U.S. Citizenship and Immigration Services (USCIS), including intensified interviews and, in certain cases, enforcement actions involving applicants who appear for scheduled appointments.
Marriage-based immigrant petitions provide a pathway for foreign-born spouses of U.S. citizens to obtain lawful permanent resident status. While such petitions remain statutorily authorized, USCIS has reaffirmed its obligation to ensure that all marriages relied upon for immigration benefits are entered into in good faith and not for the primary purpose of evading immigration laws.
Legal Framework Governing Marriage-Based Immigration
Under the Immigration and Nationality Act (INA), USCIS must determine whether a marriage forming the basis of an immigration benefit is bona fide. A qualifying marriage must be valid under applicable law and must reflect the intent of both parties to establish a shared life together at the time of marriage.
USCIS adjudicators are required to evaluate the totality of the evidence presented, including documentary submissions and in-person testimony, to assess whether the marital relationship is genuine. Where indicia of fraud are present, the agency is authorized to conduct heightened review, issue Requests for Evidence (RFEs), refer cases for further investigation, or deny the petition.
Cohabitation as an Evidentiary Consideration
Although cohabitation is not a statutory requirement, shared residence has long been treated as a strong evidentiary indicator of a bona fide marital relationship. Couples who reside together typically generate consistent documentation that reflects joint decision-making and financial interdependence, such as:
- Joint lease or mortgage agreements
- Utility bills and correspondence listing both spouses
- Government-issued identification reflecting a common address
- Evidence of shared daily life
As a result, applications involving cohabiting spouses are often easier to document and explain during the adjudication process.
Legitimate Reasons for Separate Residence
USCIS recognizes that some married couples may be required to live apart for legitimate and unavoidable reasons. These may include:
- Employment obligations in different geographic locations
- Educational programs or professional training
- Military service or government assignments
- Temporary immigration or travel constraints
However, when spouses reside separately, the burden on the applicants to clearly document and justify the arrangement increases substantially. Failure to adequately explain the separation may lead USCIS to question whether the marital relationship is genuine.
Required Evidence When Spouses Live Apart
Couples maintaining separate residences should submit comprehensive and corroborating documentation demonstrating the continuing nature of the marital relationship. Such evidence may include:
- Employment letters or educational enrollment records explaining the separation
- Proof of regular in-person visits and shared travel
- Financial records showing mutual financial support
- Communication records reflecting ongoing contact
- Affidavits from third parties attesting to the relationship
The explanation must be consistent, credible, and supported by objective documentation. Inconsistencies or unexplained gaps frequently trigger RFEs or denials.
Additional Factors Considered by USCIS
USCIS does not rely solely on cohabitation when evaluating marital legitimacy. Officers assess the totality of circumstances, including:
- Joint financial accounts and liabilities
- Shared insurance policies and beneficiary designations
- Joint tax filings, where applicable
- Consistency of testimony during interviews
- Documentary history spanning the duration of the relationship
Applications that lack cohesive documentation or contain conflicting information are at greater risk of adverse adjudicatory outcomes.
Indicators of Increased Scrutiny (“Red Flags”)
Certain factors, while not determinative on their own, may prompt closer examination by USCIS, particularly when combined with separate living arrangements. These include:
- Significant age disparities between spouses
- Substantial cultural, linguistic, or religious differences without a documented shared history
- Marriages entered into during removal proceedings or detention
- Minimal commingling of finances
- Inconsistent or evasive responses during interviews
When such factors are present, USCIS may subject the case to additional questioning or investigation.
Enforcement Considerations at USCIS Interviews
Immigration attorneys have also observed an increase in enforcement actions involving applicants who attend marriage-based green card interviews, particularly those with unresolved immigration violations or prior removal orders. While interviews are administrative in nature, USCIS retains the authority to refer cases for enforcement when legal ineligibilities are identified.
Accordingly, individuals with complex immigration histories should seek legal counsel prior to attending interviews to assess potential risks and procedural safeguards.
Government Rationale for Heightened Review
The federal government has stated that increased scrutiny of marriage-based immigration petitions is part of a broader initiative to combat fraud and preserve the integrity of the immigration system. USCIS maintains that thorough vetting is necessary to ensure that immigration benefits are granted only to eligible applicants in accordance with the law.
Nonetheless, practitioners caution that heightened enforcement standards may inadvertently impact legitimate couples who are unaware of the evidentiary weight placed on living arrangements and documentation consistency.
Conclusion
While U.S. immigration law does not require married couples to reside together, separate residences during the green card process can significantly complicate adjudication. Couples who live apart must be prepared to provide detailed explanations and substantial documentary evidence demonstrating the bona fide nature of their marriage.
